International Child Custody Case at the Second Circuit

by Dalya Bordman

 

Ermini v. Vittori, 758 F. 3d 153 (2d Cir. 2014).

An Italian family, parents Emiliano Ermini, Viviana Vittori, and children Emanuele and Daniele, moved to the United States from Italy in August of 2011 in efforts to find treatment for Daniele who is autistic. The family moved to Suffern, New York and enrolled the children in public school and put their home in Italy up for sale. Daniele started Applied Behavioral Analysis (ABA) therapy shortly after the family moved to New York. After a violent altercation in the U.S. between Ermini and Vittori, divorce proceedings were instituted in Italy and a temporary order of protection issued in New York gave Vittori temporary custody of the children.

In September 2012, Ermini petitioned an Italian court for an order directing Vittori to return to Italy with their children and although granted, several provisions of the order were vacated by the Court of Appeals in Rome. The Rome Order granted Vittori exclusive custody of the children and did not require her to return to Italy with the children. Ermini subsequently filed a petition in the Southern District of New York pursuant to the Hague Convention seeking the return of both Emanuele and Daniele back to Italy. In determining whether the Hague Convention applied, the district court concluded that the boys’ habitual residence was Italy and that Vittori had wrongfully retained the children in the United States without the consent of Ermini. Accordingly, the court found that the Hague Convention did apply, however, ruled in favor of Vittori’s affirmative defense that returning the children to their habitual country posed a grave risk to Daniele. Thus, the court denied Ermini’s petition to return the children to Italy without prejudice.

The Second Circuit, however, called into question the district court’s determinations that (1) the family did not change its habitual residence from Italy to the United States, and (2) that Vittori breached Ermini’s custody rights. Firstly, the Second Circuit reasoned that the family may have changed their habitual residence to the United States as they had leased a house in the United States, put their home in Italy on the market, enrolled their children in public school and extracurricular activities in the United States, planned to open a business in the United States, and shifted all of Daniele’s medical care and treatment to the United States. Additionally, both Ermini and Vittori agreed that the move could be indefinite if Daniele’s treatment was succeeding. Secondly, based on the Rome Order, in which custody of the children was granted to Vittori, the court questioned whether or not Vittori’s keeping the children in the United States against Ermini’s wishes actually breached Ermini’s custody rights, as Ermini did not have legal custody of the children. The Second Circuit, however, did not overturn the district court’s ruling on those grounds because the issues of habitual residency and breach of parental rights were complicated, and instead affirmed the district court’s decision based on the affirmative defense of grave risk of harm to the child if returned. Thus, the Second Circuit assumed, arguendo, that the family had not changed their habitual residence from Italy to the United States and that Vittori did breach Ermini’s parental rights by keeping the children in the United States. The Second Circuit then affirmed the district court’s decision denying Ermini’s petition because the grave risk of harm defense was satisfied as, (1) Daniele would face a grave risk of harm if he was taken out of his therapy in the United States, and (2) the children faced a grave risk of harm in Ermini’s custody because he was physically abusive.  The Second Circuit then amended the district court’s judgment to deny Ermini’s petition with prejudice, reasoning that the Hague Convention is used to decide instances of wrongful child removal and when the Convention is invoked, a child is returned or he is not, once that decision is made, the Convention is no longer needed in that situation. Thus, the court affirmed the district court’s decision and amended its judgment to deny Ermini’s petition with prejudice.

Mental Illness and Prison Reform

by Aaron Lawson

Summary

In New York State, “nearly one-third of…prisoners in solitary confinement have been diagnosed with either schizophrenia or bipolar disorder.”[1] Mentally ill prisoners fall into a vicious cycle where they are placed into solitary confinement because their mental illness limits their ability to conform to prison regulations. These inmates often find it difficult to “follow straightforward routine orders to sit down, to come out of a cell, to stand up for the count, to remove clothes from cell bars, or to take showers.”[2] As a result, mentally ill inmates are disproportionately and unjustly punished by placement in isolation. Solitary confinement then worsens their condition, resulting in more prison violations and a lengthier sentence.

A Washington Law Review article published this past June outlines the Americans with Disabilities Act (ADA) and Rehabilitation Act’s potential application in releasing mentally ill inmates from solitary confinement. Solitary confinement is a disciplinary procedure that was originally used from the early 1700s to the late 1800s, and fell out of favor as it was mentally “too severe” and “immeasurably worse than any torture of the body.”[3] However, the 1980’s introduced super maximum security (“supermax”) prisons that are designed for indefinite solitary confinement.

Today there are an estimated 25,000 prisoners in supermax prisons. “Solitary confinement is linked to suicidal thoughts, impaired concentration, confusion, depression, anxiety, paranoia, and hallucinations.”[4] Treatment options are limited by lack of access to health care professionals and group therapy sessions.

Despite these historical and medical findings, solitary confinement has not been considered an Eight Amendment violation. (However, the author notes a few exceptions for “Eighth Amendment challenges to solitary confinement for the mentally ill [in] class action suits.”)[5] Eighth Amendment claims require proving (1) subjective intent; (2) qualified immunity; and (3) subjective deliberate indifference, which the ADA and Section 504 have no such requirements:

“Disability discrimination claims against jails or prisons fall under Title II of the ADA, which prohibits discrimination by any ‘public entity.’ Public entities are defined as ‘any department, agency, special purpose district, or other instrumentality of a State or States or local government.’ In Pennsylvania Department of Corrections v. Yeskey, the Supreme Court confirmed that ‘[s]tate prisons fall squarely within the statutory definition of “public entity.”’ Federal prisons are not covered under the ADA, but are covered under Section 504 of the Rehabilitation Act for the purposes of injunctive relief. Private prisons may be covered under both Title II and Title III, the title that prohibits discrimination in ‘public accommodations.’”[6]

Title II additionally requires that these prison services, programs, and activities be administered in “the most integrated setting appropriate.”[7] Because most facilities house a disproportionate number of mentally ill inmates in solitary confinement, this disparate impact alone may be enough to demonstrate a violation of the ADA.

However, disability rights claims have disadvantages as well. Prisons and jails may be able to claim solitary confinement is a “legitimate safety requirement” grounded in an “actual risk” in order to operate its “services, programs, or activities.”[8] In addition, solitary confinement may be justified if the inmate poses a “direct threat to the health and safety of others.”[9] Class certification is another challenge because a group of inmates’ individualized “mental illness” may not create a “common claim of discrimination and a common solution.”[10]

The author concludes by highlighting other measures both states and prison guard unions are taking to minimize the use of solitary confinement. Overall, the article provides a resourceful outline for expanding the ADA and Rehabilitation Act into prison reform.

[1] Jessica Knowles, “The Shameful Wall Of Exclusion”: How Solitary Confinement For Inmates With Mental Illness Violates The Americans With Disabilities Act, 90 Wash. L. Rev. 893, 896 (2015).

[2] Id. at 935.

[3] Id. at 899-902.

[4] Id. at 907.

[5] Id. at 912-14.

[6] Id. at 915-16.

[7] Id. at 935-36.

[8] Id. at 921.

[9] Id. at 921.

[10] Id. at 922.

New Developments in Assisted Suicide Legislation

by Shannon Crane

 

This month, the California legislature passed the “End of Life Option” bill into law. This makes California the fifth state to legalize physician-assisted death by either legislative action or court ruling. Under section 443.2 of the law, an adult resident of California may request a prescription for an “aid in dying” drug if they meet all of the following criteria: (1) diagnosed with a terminal disease, (2) voluntarily wish to receive the prescription, (3) established California residency, (3) documented official request form, (4) establish the physical and mental ability to self-administer the “aid in dying” drug. The law prohibits consideration of any requests made solely because of age or disability. Further, the law prohibits any requests made via proxy or surrogate, including through power of attorney or any other legally recognizable health care decision-maker.

A key aspect of the new law falls under section 443.13. Under this section, the sale or procurement of life, health, or annuity insurance plans “may not be conditioned upon or affected by a person making or rescinding a request for an aid-in-dying drug” and “death resulting from the self-administration of an aid-in-dying drug is not suicide, and therefore health and insurance coverage shall not be exempted on that basis.” Further, a qualified individual’s self-administering of an “aid-in-dying drug shall not have an effect upon” any of the aforementioned policies, and shall be considered in the same way that a natural death from the underlying disease would be treated. This is crucial because many insurance policies can be affected, or even voided by the act of suicide.[1]

In New York, Public Health Law section 2989 specifically prohibits physician assisted death. However, there is pending legislation in the New York Assembly, sponsored by Linda B. Rosenthal, that almost identically mirrors the California law. Past versions of physician-assisted suicide have failed to pass in New York, but with the wave of recent successful laws across the country, there may be a better chance for success. The bill will likely be heavily contested.

 

[1]John Dorfman, How Life Insurance Policies Deal with Suicide, Time: Money (Aug. 15, 2014), http://time.com/ money/3117698/how-life-insurance-policies-deal-with-suicide/